United States Court of Appeals Fifth Circuit F I L E D REVISED MARCH 15, 2005 March 1, 2005 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-11131

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MAURICE P. MONTGOMERY,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas

Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Maurice Montgomery appeals his enhanced sentence, which the

district court imposed based on a finding of three prior violent

felony convictions. Persuaded that his prior conviction under a

Texas retaliation statute does not qualify as a violent felony we

vacate the sentence and remand.

I

Appellant pleaded guilty to possession of a firearm by a felon

in violation of

(g)(1).1 At sentencing, he objected

1 The second count in the indictment, possession of the firearm with an obliterated serial number in violation of

(k), was apparently dropped as part of the plea agreement. to being classified as an armed career criminal, which requires

three prior “violent felonies” for sentence enhancement purposes as

per

(e). He maintained that one of his prior three

convictions, a Texas conviction for retaliation, did not qualify as

a violent felony.2 The district court overruled this objection

and, based on the presentence report, sentenced Appellant to 15

years in prison, which is the minimum prescribed by § 924(e), as

implemented by U.S.S.G. § 4B1.4.

Appellant’s retaliation conviction stemmed from an incident on

August 6, 1993, when an officer on routine patrol observed

Appellant walking with two other men. As the officer drove past

them, Appellant yelled, “Why the fuck are you sweating us?” The

officer got out of his car, saying he wanted to talk to the three

men, but they continued walking. When the officer moved in front

of them, they tried to walk past him. One of the three said, “We

are just walking down the street. You can’t stop me mother

fucker.” The officer confronted Appellant, eventually led him away

from the group toward his patrol car, and handcuffed him. The

officer instructed the other two men to stand still and keep their

hands in view, but they refused to obey. One approached the

officer with his hands in his pockets and the other ran from the

scene.

2 According to the presentence report, Appellant’s three prior convictions were for retaliation, burglary of a habitation, and injury to a child. Appellant does not contest that the latter two are violent felonies.

2 The man who had fled returned to the scene accompanied by his

mother, and identified himself as Rodney Montgomery, Appellant’s

brother. Both Rodney and his mother were loud and causing a

disturbance. Rodney became involved in an altercation with one

officer and was restrained. The officers decided to release

Appellant and told him that he was not going to be arrested. As

Appellant began to walk off, he began to yell and said, “I’m not

going to put up with this shit any more. I’m going to put a hole

in you mother fuckers next time I get a chance.” Appellant was

then arrested for threatening the officers and later charged. The

Texas indictment stated that

[Appellant] did intentionally and knowingly threaten [to murder four individuals] in retaliation for and on account of [their] service [as Plano police officers], and said threat was made by [Appellant] verbally stating to [them]: “I’m not going to put up with this shit anymore. I’m going to put a hole in you mother fuckers next time I get a chance.”

In the instant appeal, Appellant renews his objection to the

district court’s sentence for the § 922(g)(1) violation (felon-in-

possession-of-a-firearm), arguing that his prior conviction for

retaliation is not a “violent felony” so as to warrant an enhanced

sentence under § 924(e). Appellant also asserts that his Sixth

Amendment rights were violated by the application of the § 924(e)

sentence enhancement.

II

3 A

We review a district court’s interpretation of a sentence

enhancement provision de novo.3 The district court enhanced

Montgomery’s sentence under

, the Armed Career

Criminal Act (“ACCA”), as implemented by U.S.S.G. § 4B1.4.4 The

ACCA imposes a mandatory minimum fifteen-year sentence on a

defendant who has been convicted under the felon-in-possession-of-

a-firearm statute5 and who has three prior violent felony

convictions.6 A “violent felony” is any crime punishable by

imprisonment for a term exceeding one year that

(I) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.7

In Taylor v. United States,8 the Supreme Court addressed

whether a prior conviction qualified as one of the enumerated

offenses--specifically burglary--in Subsection (ii). The Court

3 United States v. Hinojosa,

(5th Cir. 2003); United States v. Williams,

(5th Cir. 1997). 4 See U.S.S.G. § 4B1.4 cmt.; Hinojosa,

. 5

(g). 6

(e)(1). 7

(e)(2)(B). 8

(1990)

4 held that Ҥ 924(e) mandates a formal categorical approach, looking

only to the statutory definitions of the prior offenses, and not to

the particular facts underlying those convictions.”9 In other

words, “the only plausible interpretation of § 924(e)(2)(B)(ii) is

that, like the rest of the enhancement statute, it generally

requires the trial court to look only to the fact of conviction and

the statutory definition of the prior offense.”10 However, this so-

called “categorical approach” is subject to exception: it “may

permit the sentencing court to go beyond the mere fact of

conviction in a narrow range of cases where a jury was actually

required to find all the elements of [the prior violent felony in

question].”11 In reaching its conclusion, the Taylor court noted

that “Congress intended the sentencing court to look only to the

fact that the defendant had been convicted of crimes falling within

certain categories, and not to the facts underlying the prior

convictions.”12

Appellant contends that his prior retaliation conviction does

not qualify under either Subsection (I) or Subsection (ii) of the

violent felony definition. We agree.

B

9 Id. at 600. 10 Id. at 602 (emphasis added). 11 Id.

12 Id. at 600.

5 We first examine whether Appellant’s retaliation conviction

qualifies under Subsection (I) (the “Force Clause”) of the violent

felony definition, which requires that the crime have “as an

element the use, attempted use, or threatened use of physical force

against the person of another.”13

Guided by our recent decision in United States v. Calderon-

Pena,14 we apply the categorical approach of Taylor and look solely

to the statutory elements to ascertain whether a retaliation

conviction satisfies the Force Clause. We allow for an examination

of the indictment only to “pare down” the statute--that is, to

decide under which branch of a disjunctive statute a defendant’s

conviction falls.15 In Calderon-Pena, we deployed this formal

categorical approach in confronting a sentencing guideline that

contains “element of” and “force” language identical to that in the

Force Clause.16 The same analysis controls here.

The Texas criminal retaliation statute provides, in relevant

part, that “[a] person commits an offense if he intentionally or

13

(e)(2)(B)(i). 14

(5th Cir. 2004) (en banc). 15

. 16 Calderon-Pena,

(5th Cir. 2004) (applying U.S.S.G. § 2L1.2 and determining whether prior conviction “‘has as an element the use, attempted use, or threatened use of physical force against the person of another’” (quoting U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2001)); see also U.S.S.G. § 2L1.2(b)(1)(A)(ii). On a number of recent occasions we have held that a particular prior conviction does not constitute a “crime of violence” under § 2L1.2. See, e.g., United States v. Valenzuela,

(5th Cir. 2004); United States v. Rodriguez-Rodriguez,

(5th Cir. 2004); United States v. Vargas-Duran,

(5th Cir. 2004) (en banc).

6 knowingly harms or threatens to harm another by an unlawful act

. . . in retaliation for or on account of the service or status of

another as a . . . public servant.”17 In turn, “harm” is defined

as “anything reasonably regarded as loss, disadvantage, or injury,

including harm to another person in whose welfare the person

affected is interested.”18

Referring to this same retaliation statute, we recently held

in United States v. Acuna-Cuadros, applying Calderon-Pena’s

categorical approach, that it “plainly does not have as an element

the use, attempted use, or threatened use of physical force.”19 As

we explained, “[n]o portion of the statute itself requires physical

force. Although, as a matter of simple logic, the offense can

involve the application of physical force, it need not involve

physical force to maintain a conviction.”20 In light of Acuna-

Cuadros, the Force Clause will not support the enhancement in this

case. We turn next to Subsection (ii).

C

Under Subsection (ii), a “violent felony” is “any crime . . .

that is [one of several enumerated offenses] or otherwise involves

conduct that presents a serious potential risk of physical injury

17 TEX. PENAL CODE ANN. § 36.06(a)(1)(A). 18 TEX. PENAL CODE ANN. § 1.07(25). 19

, 878-79 (5th Cir. 2004) (applying U.S.S.G. § 2L1.2).

20 Id.

7 to another.”21 Because the enumerated offenses are not at issue

here, we proceed to the residual clause (or “Otherwise Clause”).

1

We take a formal categorical approach to the Otherwise Clause,

as we now explain. Taylor itself addressed the enumerated offenses

in Subsection (ii) and there is no reason that it should not apply

--viewed through the Calderon-Pena filter--with equal force to the

Otherwise Clause, which is located at the end of the enumerated

list. In Taylor, the Court reasoned that, read in the context of

Subsection (I), which “defines ‘violent felony’ as any crime

punishable by imprisonment for more than a year that ‘has as an

element’--not any crime that, in a particular case, involves--the

use or threat of force,” Subsection (ii)’s reference to burglary

“most likely refers to the elements of the statute of conviction,

not to the facts of each defendant’s conduct.”22 Given that, as per

Taylor (and Calderon-Pena), we can only look to the pared down

statute under which the prior conviction occurred to determine if

it “is burglary,” we similarly can only look to the statute to

determine if it “involves conduct that presents a serious potential

risk of physical injury to another.”23

Our case law interpreting the Otherwise Clause supports this

21

(e)(2)(B)(ii).

U.S. at 600-01. 23

(e)(2)(B)(ii).

8 approach. In United States v. Martinez, for example, we held that

a prior conviction for attempted burglary did not qualify under the

Otherwise Clause and, therefore, was not a violent felony.24 We

reasoned as follows:

[U]nder Texas law a defendant may be convicted of attempted burglary without having entered any building, and without being in the vicinity of any building. Indeed, a defendant who had taken steps which “tended to effect the commission of a burglary” could be arrested far from the target of the burglary and still be convicted of the attempt. Thus, at least as defined by Texas law, the fact that the defendant did not complete the burglary offense does indeed reduce the potential risk of injury to others. Accordingly, we hold that a conviction under Texas law for attempted burglary does not qualify as a sentence-enhancing “violent felony” under the language of 25 § 924(e)(2)(B)(ii).

In other words, it was possible to commit the prior offense without

employing conduct that entailed a serious potential risk of

physical injury.

Later, in United States v. Williams, we held that a criminal

statute prohibiting the inducement of a minor to commit sodomy

satisfies the Otherwise Clause given that any violation of the

statute entails a serious potential risk of physical harm.26 In

24 United States v. Martinez,

(5th Cir. 1992). 25

(footnote omitted) (emphasis added). 26

(5th Cir. 1997) (“Unlike attempted burglary [as in Martinez], which may be committed miles from the targeted premises and the persons in it, the former 1925 TEX. CRIM. STAT. 535(b) requires interaction with the victim . . . . In light of the intended victim’s youth, there is a significant likelihood that the perpetrator would succeed in enticing the victim into a situation that would produce violence.”).

9 reaching this conclusion, we noted that “we generally do not look

to the specific facts underlying the conviction” and, instead, we

looked directly to the language of the statute:

[A]s proscribed by former 1925 TEX. CRIM. STAT. 535(b), “for any person with lascivious intent to entice, allure, persuade, or invite” a child under age 14 for the purpose of committing sodomy, or the other listed acts, is a scenario that, as described in

(e)(2)(B)(ii), “involves conduct that presents a serious potential risk of physical injury to another”.27

Although ultimately we held that the Texas offense qualified under

§ 924(e), our analysis was rooted in whether conduct involved in

the crime, as set forth in the statute, necessarily presents a risk

of physical harm.

All of this does not, of course, mean that the statute must

have as an element either physical injury or the risk of physical

injury, but rather that violation of the statute necessarily

entails a serious potential risk of physical injury. Indeed, there

is no “element of” language in the residual clause and, as we

pointed out in an analogous context, “[a]ccepting [the] argument

that we must confine ourselves to the statutory elements of the

crime would render the residual clause a nullity.”28 Furthermore,

27 Id. 28 United States v. Claiborne,

(5th Cir. 1998). In Claiborne, we applied the residual clause of the “crime of violence” definition in § 4B1.2, which contains language identical to the Otherwise Clause of § 924(e). Id. at 254; see also United States v. Serna,

(5th Cir. 2002) (“The ACCA employs identical language to define ‘violent felony’ as the sentencing guidelines use to define ‘crime of violence.’ Compare

(e)(1) with U.S.S.G. § 4B1.2(a).”); cf. United States v. Charles,

(5th Cir. 2002) (en banc) (prohibiting conflation of separate

10 physical injury need not have, in fact, resulted.29 This

underscores the fact that it is not the conduct in the particular

case, but the statute under which the defendant was convicted that

is the touchstone for the potential risk inquiry.

2

Applying the formal categorical approach to determine whether

a prior conviction qualifies as a violent felony under the

Otherwise Clause we now turn to the Texas statute at issue. As

previously mentioned, the Texas criminal retaliation statute is

triggered when someone “intentionally or knowingly harms or

threatens to harm another by an unlawful act . . . in retaliation

for or on account of the service or status of another as a . . .

public servant.”30 It is clear that there are numerous ways that

this statute can be violated without posing a significant risk of

physical harm. For example, the statute could be violated by

someone threatening a police officer with financial or reputational

harm. This is in contrast to the statute in Williams criminalizing

inducement of a minor to commit sodomy, any violation of which

involved acts that necessarily entailed a significant risk of

definitions of “crime of violence”--as contained in U.S.S.G. § 4B1.2(a) and

--given divergent underlying language). 29 See Williams,

(“This risk to another is inherent in Williams’ prior felony conviction, regardless of the fact that he never actually had to have contact with the child, or even be alone with the child, to violate the state criminal statute.”). 30 TEX. PENAL CODE ANN. § 36.06(a)(1)(A).

11 physical harm.31

Here, the mere act of a verbal threat--while sufficient for a

retaliation conviction--does not necessarily carry with it a risk

of physical harm. The Government essentially argues that the act

of threatening poses such a risk in the same way that yelling

“fire” in a crowded theatre would. This argument is unavailing

because, as mentioned, the retaliatory action threatened against

the police officer need not have included a physical-risk-producing

act--merely an unlawful act (e.g., embezzlement would do). Thus,

there will not necessarily be a knee-jerk reaction to such threats.

III

Appellant’s prior conviction for retaliation does not qualify

as a violent felony under § 924(e) and the sentence must be

vacated. In light of this conclusion, we need not address the

impact of the Supreme Court’s recent Booker decision32 on

Appellant’s alternative argument that the sentence enhancement

violated his Sixth Amendment rights.

The sentence imposed by the district court is VACATED and the

case is REMANDED for resentencing.

31 See Williams,

. In Williams, we placed some weight on the heightened risk that necessarily resulted given that, under the statute at issue, the victim was by definition a child.

. This factor is obviously not present here. 32 United States v. Booker,

(2005).

12